IN THE CASE OF:	 

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021259 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the records of her former husband, a deceased former service member (FSM), be corrected to show he elected Survivor Benefit Plan (SBP) coverage for former spouse. 

2.  The applicant states, in effect, she and the FSM were divorced on 5 June 1989.  The divorce decree required the FSM to maintain SBP coverage for former spouse.

3.  The applicant provides:

* Marriage License, dated 9 March 1974
* Divorce decree, dated 5 June 1989
* Death certificate, dated 12 June 2012
* Several legal documents/forms pertaining to the FSM's estate
* SBP factsheet
* Letter, dated 5 September 2013
* Letter from the Defense Finance and Accounting Service (DFAS), dated 23 September 2013
* Letter from her Member of Congress, dated 27 September 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction 
of military records must be filed within 3 years after discovery of the alleged error 
or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM entered active duty on 1 August 1969 and served as a commissioned officer in the Regular Army.  He served in a variety of assignments and attained the rank of major (MAJ).

3.  The applicant's record does not contain a DA Form 4240 (Data for Payment of Retired Army Personnel).

4.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired on 30 September 1988 and he was placed on the retired list in his retired rank of MAJ.  

5.  The applicant and FSM were divorced on 5 June 1989.  The divorce decree ordered the FSM to name the applicant as the annuitant of his SBP using former spouse coverage and she agreed to waive her right to a portion of his current retired pay.  

6.  The applicant sent a letter to DFAS on 4 October 2002 requesting information about the status of her SBP benefits and stated she had been awarded SBP benefits by virtue of her divorce decree.  She further indicated she had not received any information regarding the SBP benefits since 1989.

7.  The applicant sent a subsequent letter to DFAS on 14 February 2003 requesting information about the status of her SBP benefits and stated she had not received a response to her initial letter.  It appears she provided DFAS with a copy of the divorce decree because the FSM's finance records contain a copy of the decree along with a cover sheet indicating the decree was received. 

8.  The FSM died on 12 June 2012.  His death certificate shows he was unmarried at the time of death.

9.  The FSM's records contain a letter from the applicant's attorney sent to DFAS, dated 22 June 2012.  Her attorney informed DFAS he was providing a copy of the final divorce decree, which indicated she was entitled to former spouse SBP and that the FSM had died on 12 June 2012.  Her attorney also requested that DFAS provide information regarding her SBP status.

10.  She provided an SBP fact sheet, dated 20 August 2013.  This fact sheet included a handwritten note stating that DFAS officials had informed the applicant that the FSM never notified DFAS of her entitlement to SBP benefits.  

11.  She provided correspondence from DFAS to her Member of Congress dated 23 September 2013 wherein DFAS stated, "At the time of his retirement, [the FSM] elected SBP spouse coverage.  However, after their divorce, [the FSM] did not request to change his SBP account to former spouse coverage, nor did [DFAS] receive a deemed election" from the applicant. 

12.  Public Law 92-425, enacted 21 September 1972, established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. An election, once made, was irrevocable except in certain circumstances.

13.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses.  

14.  Public Law 98-94, dated 24 September 1983, established SBP for former military spouses of retired members and Reservists.  

15.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

16.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person to elect to provide an annuity to a former spouse.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date of the decree of divorce.  The member must disclose whether the election is being made pursuant to the requirements of a court order or pursuant to a written agreement previously entered into voluntarily by the member as part of a proceeding of divorce.

17.  Title 10, U. S. Code, section 1450(f)(3)(A) permits a former spouse to make a written request that an SBP election of former spouse coverage be deemed to have been made when the former spouse is awarded the SBP annuity incident to a proceeding of divorce.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within 1 year of the date of the court order or filing involved.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's record does not contain any evidence to show the FSM completed a DA Form 4240 in connection with his retirement in 1988.  However, DFAS correspondence dated 23 September 2013 stated the FSM did elect spouse coverage at retirement.  

2.  The applicant and the FSM were divorced in June 1989, just 9 months after his retirement.  The court awarded the applicant the SBP and she agreed to waive her right to a portion of his current retired pay.  This decree indicated she and the FSM were aware an SBP election was required and she had not elected to waive her rights to the SBP annuity.

3.  SBP elections are made by category, not by name.  Once the FSM and applicant were divorced, she was no longer his spouse and no longer an eligible SBP beneficiary.  He did not change his spouse election within one year of the divorce and the applicant did not deem the election of former spouse coverage within one year of her divorce.  

4.  Although the applicant failed to protect her court-ordered entitlement to the SBP, there is no potential taker with a superior vested interest.  Accordingly, it is appropriate as a matter of equity to correct the record to show the applicant requested a deemed election for former spouse coverage within one year of her divorce from the FSM.  

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing:

* the applicant made a request for a deemed election for former spouse coverage within 1 year of her divorce from the FSM 
* DFAS effected the change, and that she be paid the SBP annuity retroactive to the day after the FSM’s death, minus any premiums due



      ___________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130021259



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ABCMR Record of Proceedings (cont)                                         AR20130021259



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